Summary:
Respondent who, after being duly notified, fails to appear at hearing for good cause, is deemed to have admitted any facts presented at hearing and all material allegations of fact contained in Animal Welfare Act complaint.

This is a disciplinary proceeding under the Animal Welfare Act, as amended, (7 U.S.C. § 2131 et seq.) ("the Act"), instituted by a Complaint filed on October 18, 1996, by the Administrator of the Animal and Plant Health Inspection Service ("APHIS"), United States Department of Agriculture ("USDA"). The Complaint alleged that Respondent wilfully violated the regulations and standards issued under the Act (9 C.F.R. § 1.1 et seq.).

On January 16, 1997, I issued an Order scheduling the hearing in this matter to commence on June 3, 1997, in Tampa, Florida. On March 27, 1997, I issued a Notice of Hearing setting forth a specific location for the June 3, 1997, hearing. Complainant appeared at the June 3, 1997, hearing represented by its counsel, Frank Martin, Jr. Although duly served with the January 16 Order and March 27, 1997, Notice, Respondent failed to appear at the hearing.

Pursuant to section 1.141(e) of the Rules of Practice (7 C.F.R. § 1.141(e)) a respondent who, after being duly notified, fails to appear at the hearing for good cause shall be deemed to have admitted any facts presented at the hearing and all material allegations of fact contained in the Complaint. In addition, Complainant presented persuasive evidence consisting of credible testimony by Dr. Robert Brandes and Mr. Gregory Wallen, experienced USDA inspectors who inspected Respondent's facilities, and documentary evidence in support of the allegations.

*2 I, therefore, accept Complainant's credible and uncontroverted evidence and Complainant's allegations and I make the following findings, conclusions, and order.

2. At all times material, Respondent was licensed and operating as an exhibitor as defined in the Act and the regulations. Respondent's license was terminated on November 22, 1995, because he failed to renew it (CX-6, 7; Tr. 6- 10).

3. After Respondent became licensed and annually thereafter, he received copies of the regulations and standards and agreed in writing to comply with them (section 2.2 of the regulations, 9 C.F.R. § 2.2; Complaint; CX-6).

4. From January 25, 1994, through August 3, 1995, Respondent's facility and animal were inspected by Dr. Robert Brandes, an experienced APHIS Veterinary Medical Officer, and Mr. Gregory Wallen, an experienced APHIS Inspector (Tr. 10-19 and 20-60). These inspections revealed that Respondent was not in compliance with the regulations and standards issued under the Act. Respondent was informed of these violations (Tr. 14, 26) and was given copies of each inspection report (CX-1 through 5; Tr. 43-44).

5. As found during APHIS' January 25, 1994, inspection of Respondent's facility (CX-1), Respondent:

a. Failed to provide the elephant named "Stony" with a transport primary enclosure that was structurally sound and maintained in good repair to protect "Stony" from injury (Tr. 15); and

6. As found during APHIS' March 2, 1994, inspection of Respondent's facility (CX-2), Respondent failed to provide "Stony" with a transport primary enclosure that was structurally sound and maintained in good repair to protect "Stony" from injury (Tr. 28-30).

7. As found during APHIS' May 3, 1995, inspection of Respondent's facility (CX-3), Respondent:

a. Failed to store food for "Stony" to adequately protect the food against infestation or contamination by vermin (Tr. 32-33);

9. As found during APHIS' August 3, 1995, inspection of Respondent's facility (CX-5), Respondent:

*3 a. Failed to maintain an adequate written program of veterinary care under the supervision and assistance of a doctor of veterinary medicine (Tr. 48-52);

b. Failed to remove and dispose of animal wastes so as to minimize vermin infestation, odors, and disease hazards (Tr. 52-54);

c. Failed to provide indoor housing facilities which were adequately ventilated to provide for the health and comfort of "Stony" (Tr. 54-56);

d. Failed to provide "Stony" with food of sufficient nutritive value to maintain him in good health (Tr. 57-58); and

e. Failed to maintain an effective program of pest control (Tr. 59-60).

Conclusions of Law

1. The Secretary has jurisdiction in this matter.

2. Respondent is an exhibitor as defined in the Act.

3. On January 25, 1994, Respondent wilfully violated:

a. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 3.137(a) of the standards (9 C.F.R. § 3.137(a)) by failing to provide the elephant named "Stony" with a transport primary enclosure that was structurally sound and maintained in good repair so as to protect "Stony" from injury; and

4. On March 2, 1994, Respondent wilfully violated section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 3.137(a) of the standards (9 C.F.R. § 3.137(a)) by failing to provide "Stony" with a transport primary enclosure that was structurally sound and maintained in good repair to protect "Stony" from injury.

5. On May 3, 1995, Respondent wilfully violated:

a. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 2.40 of the regulations (9 C.F.R. § 2.40) by failing to maintain a written program of adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine;

b. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 3.125(c) of the standards (9 C.F.R. § 3.125(c)) by failing to store food so as to adequately protect it against deterioration, molding, or contamination by vermin;

c. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 3.129(a) of the standards (9 C.F.R. § 3.129(a)) by failing to provide "Stony" with wholesome and uncontaminated food;

d. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and sections 3.131(a), (b) of the standards (9 C.F.R. §§ 3.131(a), (b)) by failing to keep the primary enclosure of "Stony" clean and sanitized; and

e. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 3.131(c) of the standards (9 C.F.R. § 3.131(c)) by failing to keep the premises clean and free of accumulations of trash.

6. On June 19, 1995, Respondent wilfully violated:

a. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 2.40 of the regulations (9 C.F.R. § 2.40) by failing to maintain a written program of adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine; and

a. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 2.40 of the regulations (9 C.F.R. § 2.40) by failing to maintain a written program of adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine;

b. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 3.125(d) of the standards (9 C.F.R. § 3.125(d)) by failing to provide for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards;

d. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 3.129(a) of the standards (9 C.F.R. § 3.129(a)) by failing to provide "Stony" with food of sufficient nutritive value to maintain him in good health; and

e. Section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and section 3.131(d) of the standards (9 C.F.R. § 3.131(d)) by failing to establish and maintain an effective pest control program.

Discussion Regarding Sanctions

APHIS conducted five inspections of Respondent's facility between January 25, 1994, and August 3, 1995. During each inspection, APHIS pointed out deficiencies to Mr. LaTorres and made recommendations for corrections (CX-1 through CX-5). Respondent received a copy of each inspection report (CX-1 through CX-5). APHIS discussed the Animal Welfare Act with Respondent and spent time educating him as to the requirements of the Act and the regulations and standards (Tr. 14, 26-27). Mr. Wallen testified that Mr. LaTorres seemed not to care about his responsibilities under the Act and regulations (Tr. 27).

The violations were wilful. The term "wilful violation" has been defined, in the context of a regulatory statute, to mean that the violator "(1) intentionally does an act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or (2) acts with careless disregard of statutory requirements." In re Arab Stock Yard, Inc., 37 Agric. Dec. 293 (1978), aff'd mem., 582 F.2d 39 (5th Cir. 1978). Respondent's repeated violations over twenty months constitute a clear disregard of the statutory and regulatory requirements.

Section 19(b) of the Act (7 U.S.C. § 2149(b) (1988)) provides:

The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations. [FN1]

With regard to the size of Respondent's business, Complainant alleges without contradiction that Mr. LaTorres had a business from which he could derive a substantial income (Tr. 25-26). The gravity of the violations is evident. Respondent did not display good faith. His conduct during twenty months indicates a consistent disregard for and unwillingness to comply with the Act and the regulations and standards.

*5 The Department has limited resources available in its enforcement efforts (Tr. 25), and therefore relies heavily on the deterrent effect of disciplinary proceedings and sanctions. Sanctions are necessary to dissuade not only Respondent but others from committing similar violations. The Act authorizes a maximum penalty of $2,500 per violation. I, therefore, find that the requested civil penalty of $5,000 is appropriate. In addition, Respondent will be disqualified from obtaining a license under the Act and regulations for five years and continuing thereafter until he has paid the civil penalty assessed against him.

Order

1. Respondent, his agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards and, in particular, shall cease and desist from:

(a) Failing to maintain a current, written program of adequate veterinary care under the supervision of a veterinarian;

(b) Failing to provide a suitable method for the removal and disposal of animal wastes;

(c) Failing to provide animals with shelter from inclement weather;

(d) Failing to maintain transport primary enclosures that are structurally sound, in good repair, and appropriate to protect the animals from injury and to contain the animals;

(e) Failing to store food to adequately protect it against infestation or contamination by vermin;

(f) Failing to clean primary enclosures for animals as required;

(g) Failing to establish and maintain an effective program for the control of pests;

(h) Failing to provide animals with wholesome and uncontaminated food;

(i) Failing to provide animals with food of sufficient nutritive value; and

2. Respondent is assessed a civil penalty of $5,000, which shall be paid by certified check or money order made payable to the Treasurer of the United States, and forwarded to: Frank Martin, Jr., Office of the General Counsel, Room 2014 - South Building, United States Department of Agriculture, Washington, DC 20250-1417.

3. Respondent is disqualified for a period of five years from becoming licensed under the Act and regulations, and continuing until he has paid the civil penalty assessed against him.

This Decision and Order shall become final and effective without further proceedings 35 days after the date of service upon Respondent as provided by section 1.142 of the Rules of Practice, 7 C.F.R. § 1.142, unless appealed to the Judicial Officer by Respondent within 30 days of service as provided in section 1.145 of the Rules of Practice, 7 C.F.R. § 1.145.

[This Decision and Order became final and effective March 10, 1998.--Editor]

FN1 It may be noted that the Judicial Officer has pointed out that consideration need not be given under the Animal Welfare Act to a respondent's ability to pay civil penalties. In re Johnson, AWA Docket No. 91-18, slip op. at 11 (June 3, 1992).